[quote=Dusty;507378'Judges have ignored the law and calculated veterans' disability into divorce settlements'[QUOTE]
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Perhaps this… the protection of VA disability from alimony?
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38 USC 5301 is the protection of VA disability compensation against alimony awards to third parties. Although they contribute to the problem, state court judges, lawyers, and state legislators see only what they want to see. Make judgments according to precedent, the easy route, “stare decisis”, Rose v. Rose, and their misrepresentation of Administrative law, 42 USC 659. Helping this process along is the Veterans Administration policy. Rubber stamping each state court garnishment order without thought or questioning. Disregarding the rules of Compliance With Process procedure. “The governmental entity shall comply with legal process, except where the process cannot be complied with because: ..” The “because” to all this follows.
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General counsel Department of Veterans Affairs before the House Committee on Veterans Affairs. Mr. Thompson speaking on the subject at hand states , “The sole exception is that VA compensation received in lieu of waived military retired pay can be garnished in order to satisfy court-ordered child support and alimony obligations.”
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Mr. Thompson continues, “VA benefits, including even disability compensation received in lieu of retired pay, are also protected by Federal law from court-ordered divisions of property upon veterans’ divorces. However, The United States Supreme Court ruled in Rose v. Rose 481 U.S. 6219(1987) that state courts are not precluded from setting child support obligations at such levels that veterans would necessarily have to use some of their disability compensation to meet them.”
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VA compensation can be garnished only if two (2) conditions exist, to satisfy court ordered, (1) child support and (2) alimony obligations. The “sole exception” Not one(1), but two(2) conditions.
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“The interpretation of the General Counsel on legal matters, contained in such opinions, is conclusive as to all VA officials and employees, not only in the matter at issue, but also in future adjudications and appeals involving the same legal issues, in the absence of a change in controlling statute or regulation or a superseding written legal opinion of the General Counsel.”
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“VA monetary benefits, entitlement to which is generally based on either the veteran’s disability and wartime service (pension) or disability from service-connected injury or disease (compensation), is generally not considered remuneration for employment.”
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42 USC Section 659. Consent by United States to income withholding,… for enforcement of child support and alimony obligations. Reading further on, worded as, “(i)(5)(B), to provide child support or make alimony payments”, “(e) child support or alimony”. Why child support or alimony? To cover all conditions of a veteran’s activity, such circumstances in retirement or employment, in order to carry out court ordered alimony judgments in garnishing retirement payments, military pay, assets, etc., classified and based ….as remuneration for employment. “Remuneration” conditions having absolutely nothing to do with a veterans’ disability compensation. A disabled veteran, having no child support issues, is receiving disability compensation not based on remuneration for employment, therefore not subject to garnishment.
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“The test to determine if a payment is subject to garnishment is whether the payment is remuneration for employment as defined in section 459 [42 U.S.C. 659(a) and (h).“You will see that in 659 (V) they are talking about retired or retainer pay where “..the entitlement to which is based upon remuneration for employment”
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“(h) Moneys subject to process
(1) In general
Subject to paragraph (2), moneys payable to an individual which are considered to be based upon remuneration for employment, for purposes of this section -
(V) by the Secretary of Veterans Affairs as compensation for a service-connected disability paid by the Secretary to a former member of the Armed Forces who is in receipt of retired or retainer pay if the former member has waived a portion of the retired or retainer pay in order to receive such compensation;..”
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TITLE 5--ADMINISTRATIVE PERSONNEL CHAPTER I--OFFICE OF PERSONNEL MANAGEMENT PART 581
_PROCESSING GARNISHMENT ORDERS FOR CHILD SUPPORT AND/OR ALIMONY --
Honoring legal process.
(a) The governmental entity shall comply with legal process, except where the process cannot be complied with because:
(2) The legal process would require the withholding of funds not deemed moneys due from, or payable by, the United States as remuneration for employment;
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What have these laws taught us? That disability compensation is not.. retired or retainer pay. Therefore not.. remuneration for employment compensation. That the VA’s mandate ignores compliance with its legal process, and illegally continue to complying, and processing state court ordered judgments outside the guidelines of federal law.
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You can argue these points with the state court, hoping that they will be persuaded. If not, the garnishment process goes forward. The only thing now is to, writing a formal letter, bringing this to the attention of the VA , the federal financial department, that is responsible for following up on garnishment orders from a state court.
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If adjudication of state court orders is disregarded by formal documentation by the VA, now is the time to file a “notice of disagreement” (NOD) with the VA. Most likely they will reply denying your claim. Your next step is the courts. First filing an appeal by the Board of Veterans Appeals (BVA) where they will, because they work for the VA, also rule against you. The next step would be the United States Federal Court of Appeals for Veterans’ Claims, who do not work for the VA. This court does not argue against what has been the ruling, but instead look for violations of federal statutes, or laws.
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If there is no “child support” issue, in a case where federal laws have been violated, if you have never done this, as I found it in another matter, it is fairly easy, almost simple, adhering to the reasonable time limitations. The problem is, it takes a long time, first in one court and then the next. But in order to resolve this issue you have to start.
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Good luck!